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Click here for the full text of this decision FACTS:On February 25, 2004, Judge Don Stricklin signed a document entitled “Discovery Order,” directing the State “to furnish the items ordered for inspection and copying on or before ten (10) days prior to trial.” Those items included, among other things, “[a]ll video and tape recordings that contain the defendant’s voice.” It is undisputed that no such items were produced before trial. Oprean’s felony DWI jury trial began on April 12, 2004. After hearing evidence and deliberating, the jury found Oprean guilty on April 14 and was recessed for the day. That evening, Oprean’s attorney asked the trial prosecutor what evidence she intended to present on the punishment issue the next morning. She replied that she intended to present only the “judgments and sentences” in Oprean’s prior convictions. Just minutes before the punishment phase began, defense counsel learned that the prosecutor was going to offer a videotape depicting one of Oprean’s previous offenses into evidence. The prosecutor informed defense counsel of her intent to offer the video only after defense counsel inquired about the presence of a police officer in the courtroom, who he assumed was present for another case. The prosecutor informed the trial judge and defense counsel that the officer was there to “testify that the video is a fair and accurate depiction.” Outside the presence of the jury, defense counsel objected to the admission of the video, pointing out to the judge that the prosecutor had violated the discovery order by failing to allow the defense ten days to inspect the video and relating the conversation he had with the prosecutor the previous evening. The trial judge overruled defense counsel’s objection to the tape’s admission. Defense counsel then asked the judge to grant a recess so that he could inspect the video and prepare his strategy, but the judge summarily denied his request. The tape was introduced before the jury, and the jury assessed Oprean’s punishment at five years imprisonment and a $5,000 fine. Oprean appealed and Houston’s 1st Court of Appeals affirmed his conviction. The court stated: “The record does not demonstrate that the State acted with specific intent to willfully disobey the discovery order. We hold that the trial judge did not abuse its discretion in admitting the videotape.” The CCA granted Oprean’s petition for discretionary review to decide whether the Court of Appeals erred in upholding the trial judge’s decision to admit the video over Oprean’s objection HOLDING:Reversed and remanded. The court began by reviewing its precedent that evidence willfully withheld from disclosure under a discovery order should be excluded from evidence. “In this case,” the court stated, “we must determine whether the prosecutor acted with the specific intent to willfully disobey the discovery order by failing to turn over the videotape from Oprean’s prior 2002 DWI conviction to the defense. We conclude that she did . . . . “Affording total deference to the trial judge’s implicit findings of fact that are supported by the record, we find that the trial judge abused his discretion in admitting the videotape over defense counsel’s objection. The record reveals that . . . the prosecutor’s conduct here was a calculated effort to frustrate the defense. Because intent is inferred from acts done and words spoken, we have considered the prosecutor’s statements and actions in finding her conduct to be willful.” OPINION:Keasler, J., delivered the opinion of the Court in which Meyers, Price, Womack, Johnson, Hervey, and Holcomb, J.J., joined. CONCURRENCE:Cochran, J., filed a concurring opinion in which Keller, P.J., joined. “I cannot join the majority opinion which concludes that the prosecutor �willfully’ violated a discovery order . . . . However, I agree with the majority that the trial court did, under the particular facts of this case, err in admitting the videotape without granting the defense a recess to prepare to meet this unexpected, unreviewed evidence.”

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